Legal Issues Important to Ohio Families and Businesses

In Ohio and in most if not all other states, it is a crime with serious punishment potential to unnecessarily put a child in risk of harm – as it should be. In Ohio this is known as Child Endangering, Endangering Children, or Child Endangerment. Parents (and others in the role of a parent, known as “in loco parentis”) have been charged in various states for things ranging from refusing to get medical care due to religious or other personal beliefs, to outright abuse of a child.

But there is much room for discussion about when a parent’s legitimate exercise of their role as parent, their fundamental constitutional right to parent their own child, crosses a line from legitimate parenting to criminal acts.

In Ohio, Endangering Children, Ohio Revised Code 2919.22(B), can be charged in several ways, including more clear and obvious accusations of persons who:

— “Abuse” or “torture or cruelly abuse” a child;

— “Administer corporal punishment or other physical disciplinary measure,” or “physical restraint” but “in a cruel manner or for a prolonged period,” which is “excessive” and “creates a substantial risk of serious physical harm;” or

— “Repeatedly administer unwarranted disciplinary measures,” where there is a “substantial risk” that the measures will “seriously impair or retard the child’s mental health or development”; or

— Allowing a child to be within a certain distance of drug manufacturing activity;

— Driving under the influence with a child.

These acts all seem pretty obvious, that no reasonable sensible person, much less a parent, would do, and if they did, would be a crime. Prosecuted cases in Ohio have included the worst conduct one can imagine, including in a reported case, a parent essentially “branding” a child with hot scissors, and another parent just watching and allowing it. State v. Sammons, 58 Ohio St. 2d 460, 391 N.E.2d 713 (1979), which can also be found at:

These offenses in Ohio can be punished (depending on the circumstances and the result) can be punishable as a first degree misdemeanor (punishable by up to six months in jail and a $1,000.00 fine), to high level felonies punishable by lengthy prison sentences.

There is another form of Endangering Children though that is less clear. Ohio Revised Code 2919.22(A) also makes it illegal to “create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.” There is a stated exception for a parent or custodian of a child who “treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.”

Prosecutions under this section, which is obviously not very specific, have included neglecting a child – not attending to proper food, clothing, shelter, or medical or emotional care. Such a case was State v. Daniels, 61 Ohio St. 2d 220, 400 N.E.2d 399 (1980), which can be found at:

So how does a parent know though when something they do, that does involve some risk, is legal, as opposed to illegal? What is a “substantial risk” to the health or safety of a child? What about parents who sign kids up for football – which has an obvious risk of anything from bruises to broken bones and these days repeated concussions and other brain injuries? What about martial arts or wrestling? Soccer? Boating, camping, hiking? Shooting activities (hunting, firearms and archery)? Rollercoasters? Skating and skateboarding? Horseback riding? Even swimming? Each of these activities involves a risk of harm, potentially serious harm. For that matter, going outside, to work, to school, getting in a car and going out on the public roads, involves a risk, sometimes substantial risk. Who gets to decide when it becomes “substantial” and therefore illegal? There is a constitutional right to not be charged with something that is so vague an ordinary person can’t know when it is illegal to do it, or when the illegality of it is up to the subjective opinion of police officers, prosecutors, or judges; or when the definition of the crime is so broad as to include legal activities in the definitions of illegality. This is known as the vagueness or overbreadth doctrine, and is protected both by the First Amendment and the Due Process clauses. A discussion of these rights is in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), which can be found at:

Courts in Ohio have imposed limitations on the broad wording of “a substantial risk” to a child’s health or safety. These include:

— Including in the definition of the offense that the person must have acted “recklessly” in creating the substantial risk, which means “with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.” (Ohio Revised Code 2901.22(C)).

— “Substantial risk” has also been defined as “a strong possibility, as contrasted with a remote or even a significant possibility that a certain result may occur or that certain circumstances may exist.”

— In addition, a court (or jury) is not permitted to “make an inference upon an inference in order to transform a speculative risk into a substantial risk” (meaning drawing an inference or conclusion from one fact, and then inferring another fact from that inference – “if that happens, this might also happen”). There must also be “some evidence beyond mere speculation as to the risk of harm that could potentially occur due to a single imprudent act.”

Discussions of these added limitations to the offense can be found at State v. Hughes, decided by the Ohio Third Appellate District, where a parent was charged (and eventually convicted of Child Endangering) for leaving his 5-year old alone in a car, with the air conditioning on and with a cell phone, while in a Walmart for 27 minutes. Although the father was convicted at a trial, the court of appeals reversed the conviction (with one of the three appellate judges disagreeing), because the conduct did not meet the required standards. The case can be found at:

So the question is left open: when (and who gets to decide when) it is a crime where a parent engages with their children in what one parent might think is entirely appropriate recreational or sports activity, that involves some risks, but that someone else (a police officer, a prosecutor, or even an opposing parent) thinks is too dangerous? Some Ohio courts have found the statute to be unconstitutionally vague or overly broad because of that question, but others have not. It is not clear. So in Ohio in some cases it might mean a judge or a jury must make that decision, and a parent can be brought in to court to defend their decisions as what is not too much risk in recreational activities. A parent could have to choose between not doing something fun and maybe entertaining or even enriching or character-building for a child, in fear of being prosecuted because someone thinks it’s too dangerous. Many very common recreational or sports activities could legitimately be argued to be too much of a “substantial risk” to the health of the child, and it is “reckless” for a parent to let the child do those.

For one person, these limitations on the offense did not keep him from being accused and charged and tried. The dilemma for a parent was recently tested in a courtroom trial for such a parent, in the context of off-roading and 4-wheeling. The case involved a single separated father of 4 and 7 year old sons. In the past the entire family had been avid off-roading and 4 wheeling participants. Each child had their own 4 wheeler at each parent’s home they rode by themselves. They had also gone to a local festival where they rode Jeeps and other ATV’s through mud and obstacle courses, with the kids in the vehicles. Police attend and watch.

This time Dad took the children in his Jeep, which had modifications for off-roading (higher suspension, larger tires) to a local off-road wilderness area that they had gone to together before, as a family. The area has a creek bed with various stages of water, rocks, and rough and not-as-rough areas. The kids were buckled in, the 7 year old in front, the 4 year old in back with a booster seat. Dad had the two front doors off the Jeep. Although there is some dispute about what the riding in the area was like, it included slow driving but on bumpy surfaces and water around a few inches to maybe around a foot deep – not up to the axles even. There was some dispute about how “rough” the water was. No accident happened, no one was injured.

The other parent found out and objected to the activity, expressing concern that it was too dangerous and something terrible could happen. Local police expressed the opinion that due to the area, something bad (an accident, breakdown, roll-over, etc.), was likely to happen, and if it did, it would be difficult or impossible for emergency personnel to get to the area. So a prosecutor approved Child Endangering charges, and the father retained counsel, and chose to defend the case in court and in front of a jury.

The case tested the extent of what is not enough or too much risk. The analogy was made to other activities, where yes something bad could happen. After all the prosecution’s evidence was presented, the Judge applied the principals of when a risk is “substantial” enough, and not based only on “remote” or “even significant” risks, and not based on mere speculation or the prohibited “inference on an inference” – too many “ifs” before the harm could happen (“if” the Dad did something, and then “if” that resulted in an accident, and then “if” emergency crews were needed, then it would be a problem). Under that evidence, the Judge found that there was not enough evidence and dismissed the charges, so the jury never had to decide it. The jurors interviewed after agreed that was the correct result.

This case can be looked at in several ways. It could be argued that the law is too lenient and the court allowed too much danger for children. It could be argued that it is the correct application of constitutional and criminal law and that a parent can’t be punished for conduct, even if risky or even irresponsible, if not certain enough to actually result in harm. As one court described the policy on the law (in the context of leaving the child in the car at Walmart):

“However, simply because Hughes made an irresponsible parenting decision does not mean that his conduct rises to the level of a criminal offense, deserving of fines and possible imprisonment. It is not the function of the criminal justice system to invade the sacred right of parents to raise their children as they deem suitable and proper, and police officers and prosecutors should exercise the appropriate discretion in deciding whether a parent’s conduct crosses that thin line between bad parenting and criminal culpability. ‘We, as a society, cannot [criminally] punish parents for every error in judgment, even if a child is injured, under a theory of strict liability.’” (Quoting the Hughes case above).

What is certain though is that this particular parent found himself in a courtroom in front of a jury and judge, defending himself and his parenting, for choosing a certain kind of “fun” for him and his children, versus the opinion of a police officer, a prosecutor, and an opposing parent. Some could also argue he should not have been required to do so, but it doesn’t change that he did. Fortunately for him, he was also acquitted. The hope (always) is that lessons were learned by all involved.

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:

Currently pending before the Ohio Governor is House Bill 64, also part of the State Budget, which must be signed, if at all, by June 30, 2015. Included in the Bill is a new insurance subrogation law that impacts Ohioans who have been injured by someone and have incurred medical bills that might be covered by some form of insurance. Here’s how it works.

In Ohio, and in most other states, insurance companies have a common law or a contract right of subrogation. This means that if your insurance company, or the government (Medicare, Medicaid, Worker’s Compensation) pays your medical bills, that were caused by someone else’s fault, the insurance company can represent you and get the bills they paid for you back from the person whose fault it was to start with. This right of subrogation applied if it was a medical payments policy on your car insurance or homeowners insurance, workers compensation, a car accident, an injury caused by falling, slipping, or tripping due to some dangerous condition of someone’s property, medical negligence, and other situations.

For the longest time, Ohio, and many other states, observed what was known as the “Make Whole Doctrine.” This means that you, the injured person, are entitled though to be fully compensated for an injury, or “made whole,” before an insurance company gets subrogated or reimbursed. So if another driver hurts you, they have to compensate you first, completely, and only then does the insurance company get paid back.

Over the last several years, the Make Whole Doctrine has been eroded away. In most instances, due to decisions of the courts and acts of the Legislature, insurance companies have been permitted to “step to the head of the line,” and get paid back for what they paid out – usually only paid out because the injured person paid premiums to get that right – before the injured person gets anything. So for an example, another driver might hurt you in an accident, and you have $50,000.00 of medical bills as a result paid by your own health insurance. But the other driver only has $50,000.00 of liability insurance. Your insurance company would have a right to the entire recovery, first, before you get reimbursed for any lost wages, pain and suffering, and before reimbursement to your own attorney for fees and expenses incurred to get that recovery. And, the insurance company didn’t have to pay anything for the work that you and your attorney did to prove the case and get the recovery. So it was the “Make Whole Doctrine” upside down – the insurance company gets paid first, even though it took premiums for the benefits it paid out, and before the actual injured person gets anything.

There is now though in the Ohio General Assembly a part of the current budget bill that will fix a large part of that, and for the benefit of actual Ohio citizens. It is found in House Bill 64, the state budget bill, which the Governor must sign by June 30, 2015. The corporate lobbyists, with the health insurance industry and the Chamber of Commerce leading the way, are pressuring Governor Kasich to use his line-item veto to erase the corrections.

The corrections fix the subrogation rules as follows:

If the injured person receives from a claim or settlement from the person who cause their injuries less than full value for his/her claim, the subrogated interest (in most cases, a health insurer) gets only its pro rata share of the recovery, diminished by the same proportion that the plaintiff’s recovery is diminished. So that if the true full value of a person’s claim is $100,000.00, but they only get $50,000.00 (usually due to lack of full insurance on the party at fault, or compromise to avoid the time and expense of trial), their claim is reduced by 50%, and so is the insurance company’s. If they paid $30,000.00 in medical bills, they also get only 50% back, just like the injured person.

The subrogated interest must also pay its pro rata share of legal fees and expenses. So if the injured person owes a lawyer 1/3 to get the recovery, the insurance company’s claim is also reduced by 1/3 (which depending on the attorney representing the injured person, either pays the attorney for getting the insurance company the money they wouldn’t otherwise have, or it can go back to the injured person).

If the injured party and the subrogated interest cannot agree on the numbers, either may have a court resolve it for them.

The pro rata subrogation provision, which is modeled after an Indiana statute, places Ohio on the conservative side of similar state laws nationally. It is not completely “make whole,” but is not as bad as the law here now. Forty out of 50 states are either “make whole” or are pro rata. In addition, Ohio’s workers’ compensation system, Medicaid and Medicare, also have a proportionate share policy that governs their subrogated recoveries, automatically, so this law only applies the same concepts – shared reduction of claims and recovery – to private insurance companies just like public ones.

Persons who are in favor of applying this “shared recovery” law, and reduce the private insurance companies’ priority rights or recovery which is now even greater than the person who actually suffered the injury, are encouraged to call the Governor’s office (614-466-3555), or send an email, to support signing this Bill with this new provision. Here’s what you can say: “I support the fair subrogation provision in the budget bill and ask the Governor to sign it into law. It’s fair and proven to work.” The Governor’s contact form can be found here:

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:

For many decades in Ohio, the General Assembly allowed the Ohio Department of Health to develop the program to test drivers for being under the influence of alcohol. The ODH responded by approving, as the Ohio General Assembly directed, breath-testing machines, designed and approved by the State, which were deemed to be reliable methods of measuring the amount of alcohol in a person, by taking and measuring the alcohol in their breath – measured by blowing into the machine and through a scientific and mechanical process measuring the content of the alcohol in the breath sample, and then through a mathematical calculation producing a result in terms of the amount of alcohol in the person – the mathematical ratio of alcohol to breath calculated to how much that must mean in the body or blood.

The original law though just created a presumption, that if the driver has so much alcohol in them, as determined by the machine, they must be “under the influence,” meaning appreciably impaired in their driving ability and therefore the safety of the public, but the driver could fight or rebut that by other evidence, such as actual safe driving, witnesses, or other scientific tests.

Part of the defenses included attempts to show, by scientists and engineers, that the methodology was flawed, or the machines weren’t reliable. In State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), the Ohio Supreme Court held that when the General Assembly wrote the DUI laws and said, the ODH can determine reliable methods for testing, those methods so approved could not be attacked as unreliable – the courts would not be permitted to rewrite the law even if they disagreed with the science, or lack of science.

Along the way the “presumption,” that could be attacked, that a person the machine said had so much alcohol in them was legally “under the influence,” also changed. Ohio law was changed (as it was in almost every other State) to do away with the “rebuttable presumption” of being under the influence, to the new “per se” offense, that it was illegal to drive if the machine said your alcohol level was above a certain limit. In a “per se” prosecution, it didn’t matter whether you were really under the influence or not, if the machine said your blood alcohol content, as measured by comparison to your breath alcohol content, was so much, you committed a crime.

This came to be known as “trial by machine.” If the machine said so, you were guilty. So attorneys defending persons accused of driving “over the limit,” the per se offense, attempted to attach the machine or in some cases the testing method itself, as well as their client’s actual impairment. Courts in Ohio for years said that State v. Vega prohibited that attempt. One couldn’t challenge the machine, or the test, and could only challenge if the test was done on an approved machine and by the approved method. But that was it.

But that is not what State v Vega said. It only “precluded an accused from presenting expert testimony attacking the general scientific reliability of breath-alcohol tests that have been conducted in accordance with methods approved by the director of ODH.” It did not prohibit an accused driver of arguing that the result was wrong, because the machine didn’t work right, generally or in their case.

In recent years the ODH approved a new breath testing machine that has been so controversial that the attack on “trial by machine” was opened anew. Ohio approved the “Intoxilyzer 8000” (named because it was cheaper than the “Intoxilyzer 10000”). Study of the machine by scientists and legal professionals discovered many potential defects in the machine that called into question the reliability of it generally and in individual cases. The machine was so controversial that many police departments quit using it and went back to the machines that were used before it. But efforts were made to get to the source of the methodology used and the history of the design and use of the new machine. Many courts resorted to the mistaken but commonly accepted misinterpretation of State v Vega to prevent those efforts and challenges to the machine.

The approval of this controversial machine that so many across the country thought was unreliable opened the door to attach that commonly accepted misinterpretation, and the attack was successful. In 2011 a driver (Mr. Ilg) lost control of his car on Beekman Street in Cincinnati, Ohio, and ran off the road striking a fence, a sign, and a pole. The investigating officer arrested Ilg for OVI (used to be known as DUI). Ilg submitted to a breath-alcohol test on the Intoxilyzer 8000 machine, which measured his breath-alcohol concentration over the legal limit. His attorneys asked the court to suppress or exclude the results of his breath test. In that process they tried to get documentation not only on Ilg’s test, but other data about the operation of the machine, both on him and on others.

The prosecution did not produce the requested information, so Ilg’s attorneys subpoenaed them directly from the ODH for its database maintained from each breath-analyzer machine for each breath test performed across the State. Ilg also subpoenaed records regarding the Intoxilyzer 8000 between ODH and the city of Cincinnati, the Ohio Department of Public Safety, and the manufacturer of the breath-analyzer machine. None of the subpoenaed persons even responded.

So Ilg’s attorneys did what all attorney’s do when a subpoena is ignored – they asked the court to exclude the results of his breath test because of the failure to comply with the discovery requests and subpoenas. How can they present the test result, but hide the information used to get it? At a hearing on the request ODH officials testified they couldn’t give the requested information, for various technical reasons. The court disagreed with the State and the City, ordered ODH to disclose the records requested in the subpoena, and told the prosecution that sanctions would be imposed it if did not comply.

The court’s deadline for compliance passed, and so Ilg again moved for the sanctions to be imposed, including the exclusion of the breath-test results. At the hearing on why the State did not comply, ODH claimed it “lacked the personnel and technology to copy the database,” and that “it would require an additional employee and approximately $100,000 to produce a copy that could be released,” and even then it would be “technologically difficult to produce.”

The court held that Ilg had the right to challenge the reliability of his breath test but could not without the data generated by the Intoxilyzer 8000 that tested him. The trial court therefore excluded the breath-test results from evidence.

The State appealed, but the court of appeals that the trial court did not commit error by suppressing the results. Disregarding the argument that State v. Vega prevented the attempt to do what Ilg was trying to do, the court also held that Ilg had not sought to challenge the scientific reliability of all Intoxilyzer 8000s, but to discredit the particular breath analyzer that Cincinnati Police used to test his breath-alcohol concentration. The prosecution appealed again, to the Ohio Supreme Court, arguing one proposition: “State v. Vega prohibits defendants in OVI cases from making attacks on the reliability of breath testing instruments, thus a defendant cannot compel any party to produce information that is to be used for the purpose of attacking the reliability of the breath testing instrument.”

The Ohio Supreme Court rejected this proposition, confirmed what it meant in State v Vega, and allowed the challenge and the sanction imposed – exclusion of the test that they would not allow to be examined. Although “an accused therefore may not attack the general scientific reliability of that machine test,” ODH approval of the Intoxilyzer 8000 “does not preclude an accused from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific tests results at issue in a pending case.” And as Ilg’s expert witness testified, “[i]n order to be able to evaluate the reliability of the test, this particular Intoxilyzer 8000 machine, and the testing procedures in this case, all of the documents requested of the State and ODH are necessary.” So Ilg was “entitled to discovery of relevant evidence to support his claim that the Intoxilyzer 8000 machine used to test him failed to operate properly.”

The case is not a complete victory for those defending accusations of OVI, because it did not allow the challenge to the entire machine and method once approved by ODH. But it did allow the argument that the test in the particular case was scientifically unreliable – the “machine” might be wrong, and if it might be wrong, there might be reasonable doubt as to whether an accused driver did in fact violate the per se offense. And the absolute bar to any attack of the machine’s test result, on the basis of simple science, based on the misinterpretation of State v. Vega, is no more.

The case is in City of Cincinnati v. Ilg, 2014-Ohio-4258, and can be found at:

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:

“Trial Lawyers” – a misunderstood and misapplied title for lawyers who represent injury victims

In England (and other countries), lawyers come in two varieties: solicitors, who are known to advise and consult and do transactional work, documents, etc.; and barristers, who the solicitors hire to go into court to litigate a case for the client, when necessary.

In the United States, there is no such formal division, and many lawyers do both. Many lawyers never go in a courtroom and do 100% outside “transactional” work. Lawyers to actually go to court, either with or without a jury, may also do outside or transactional work.

The lawyers who actually go to court are sometimes called “trial lawyers.” The term because associated primarily with those lawyers who go to court on behalf of injury victims, to seek legal compensation for their losses, instead of representing those accused of causing the harm. The term, applied to plaintiff’s or injury victims’ lawyers, became common probably in the 1960’s and after. Many professional associations of lawyers doing that kind of work – also known as “personal injury lawyers” or “bodily injury lawyers” – took on that title, as with the American Trial Lawyers Academy (ATLA) or the State affiliated organizations, such as the Ohio Academy of Trial Lawyers (OATL) or the Kentucky Academy of Trial Attorneys (KATA). This is a misnomer, as those who primarily defend such cases had their own “trial lawyer” associations, generally calling themselves, “civil trial lawyers.” It is also a misnomer because those who defend persons accused of crimes, those who represent people sued (or suing) for other things in civil court, and those who represent parties in family court, also use the trial processes to seek justice for their clients.

Due to much rhetoric and propaganda, persons began to associate negative connotations to “trial lawyers,” conjuring up the most negative of stereotypes, but almost exclusively connecting those stereotypes to the lawyers who went to court for injury victims, to the exclusion of those other “trial lawyers” who did the same thing in different contexts.

This led to a movement in recent years for the professional organizations – many of them, but not all – who primarily represent injury victims to change their names. ATLA became the American Association for Justice. OATL became the Ohio Association for Justice. KATA became the Kentucky Justice Association. And many others across the county did the same thing. It was to avoid many of the negative stereotypes that became associated with the moniker of “trial lawyer” for those representing injury victims. But the work those of us do who represent injury victims is the same: using the judicial system and court process to hold those who injury others accountable, by seeking fair compensation to the victims of negligence, defective products, and dangerous activities and agents. That is, in the eyes of those doing this work, the purest “civil justice” that can be pursued for those whose lives are sometimes devastated through no fault of their own, but by those of careless individuals or companies.

When one finds themselves in that position – in the shoes of someone injured, or whose life is disrupted by someone else’s carelessness or fault – it will be those who seek “civil justice” to go to for help. Most of those people were used to be known as, and still are, “trial lawyers.”

More information can be obtained about civil justice advocates’ activities at:

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:

The situation is not uncommon, where someone makes a mistake, maybe even hurting someone, maybe even by accident, and then they “do the right thing” – they apologize, or say something like an apology, either for what they did, or for what happened. Occasionally, this happens in health care. A patient ends up with a bad result from a treatment, a prescription, or from a medical procedure, or some other medical mistake – which recent statistics and studies show is more common than one might think. The health care provider might say they were sorry, or “I’m sorry for your loss,” or maybe even “I take full responsibility for what happened.”

Sometimes those incidents end up in court. Ohio has Rules of Evidence, which govern what can be presented in court, and what cannot. Ohio Rule of Evidence 801(D)(2) provides that an “admission” by an opponent in court is not inadmissible hearsay. So one would think that if a medical provider makes a mistake that is actionable negligence, “apologizes” for it, or even admits it was their responsibility, that would be admissible in court against them if the patient takes them to court for compensation for what the medical provider did.

Not so in Ohio courts, regardless of the Rule of Evidence. The Ohio General Assembly in 2004 enacted R.C. 2317.43, the “Apology Statute.” It provides – and only for medical providers, not for ordinary citizens – that if the medical provider makes a “statement of sympathy,” which includes pretty much all “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence,” it is not admissible against that provider in a medical malpractice case.

So the General Assembly meant to insulate a medical provider, when something bad happens from their actions, when they say “I’m sorry” or something like that, that the “apology” can’t be used against them in court. The Statute serves the purpose of both allowing medical providers to make expressions of sympathy for what happened, even if it is not their “fault,” but also to prevent such statements from being used in court, so a judge or jury wouldn’t be allowed to decide if the provider was just expressing sympathy, or actually admitting they made a mistake.

But what about when the provider doesn’t just express sympathy or sorrow for a tragic result, fault or no fault, but goes further, and comes closer to actually admitting they made a mistake – such as “I take full responsibility for this”? It would seem, under the Rules of Evidence, this is admissible. And it would seem that the Apology Statute would not apply to that, as it is not just an expression of sympathy, but appears to go farther.

According to the Ohio Supreme Court, such a statement – accepting full responsibility for what happened – is not an “admission” of fault, but only an apology and therefore not admissible in court. In April 2001 a physician performed a laparoscopic procedure on a patient’s (Jeanette’s) gall bladder. Complications arose during the procedure resulting in the narrowing of the duct in the gall bladder (that allows for the waste product to be eliminated). Jeannette was nonetheless released from the hospital, but three weeks later had to go back, due to jaundice and the obstructed gall bladder. The same physician told her that she’d have to go through another surgery to fix it, and told her, “I take full responsibility for this.” Jeannette went through the procedure and a lengthy period of recovery, and eventually filed suit against the surgeon.

While the suit was pending, the Apology Statute was passed. The surgeon’s attorney successfully convinced the court to exclude from the trial the surgeon’s acceptance of “full responsibility.” After a trial to a jury – where the jury was not allowed to hear the surgeon’s statement – the jury decided in favor of the surgeon.

On appeal, the Court of Appeals stated that the Apology Statute couldn’t even be applied, because to do so would be the unconstitutional retroactive application of the law; and that a jury should have been able to determine what the surgeon meant by taking “full responsibility.” But the surgeon appealed to the Ohio Supreme Court, and the court disagreed, and sided with the trial judge, that the “acceptance of full responsibility” is the same as an “apology,” and therefore it was correct that the jury never heard those words from the surgeon. The Court construed the circumstances of a distressed and upset patient, and a physician attempting to comfort them, and it was appropriate for the trial court to exclude from the jury’s consideration those circumstances.

The result is another example of the burdens and roadblocks in the way of a patient trying to obtain justice from a physician’s mistake, and having a jury, not a judge, decide the facts, even when the physician, maybe, conceded their own fault. The “rule” wouldn’t apply to a driver at the scene of a car accident, or a business owner who left something dangerous in the way of their customers, or an attorney who messed up their client’s case, who says, “I accept full responsibility for this” accident. It only applies to medical providers. Maybe it would have been a different result (the Court did leave room for other situations) if the “distressed and upset” patient or family member had then asked the surgeon, “Do you mean it was your fault?” Or if the patient had not been “distressed and upset” over being injured by the physician’s error. Those cases are yet to be addressed.

The case is Estate of Johnson v. Smith, 135 Ohio St.3d 440, 2013-Ohio-1507, and can be found at:

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:

There has been much discussion lately, in light of the trial of George Zimmerman in Florida, about self-defense laws. The law of self-defense comes from the common law (historical judicial announcements of the law, sometimes over centuries. As a result though, it is subject to modification by the legislatures, or by the courts over time.

Traditionally, from the common law any person is generally entitled to use “reasonable force” to defend themselves, or someone else, from the loss of property, or from bodily harm or death. What force is “reasonable” depends of the circumstances, and particularly the force being defended. One can’t for example use deadly force in response to less than deadly force. One can’t use a gun (generally, with exceptions) to respond to a fist fight. The responsive force can’t be “excessive,” that is, can’t be more than is necessary to prevent the harm being defended against.

One is generally also not entitled to use “deadly force,” the greatest degree of force possible (that can result in serious bodily harm of death), just to defend one’s property (someone running away from a shoplifting, or someone picking up your purse or wallet and running away). This leads many to repeat usually false stories about people breaking into one’s home, and then suing the resident when the resident uses force to defend the home. These stories are generally false, because the common law, sometimes knows as the “Castle Doctrine,” is that one is allowed to assume that if someone is in their home, at night, without permission, that serious bodily harm may result, and therefore serious bodily harm in response is usually justified (“One’s home is their castle.”).

In addition, the common law generally requires, before one can use deadly force to defend even themselves, they must not be the aggressor in the confrontation, and they must first attempt to retreat if they can, unless they are in their own home where they have no duty to retreat – another part of the “Castle Doctrine.” The philosophy behind these common law principles is that physical harm and violence is never preferred, and that bodily harm is not justified by loss of mere property. It is deemed better to run away, or lose your property, and let the police and courts sort it out later, than to have anyone hurt or even killed if it is avoidable.

And in most states that follow this traditional common law, the person charged with the crime and who claims they were defending themselves has to prove their claim. The State doesn’t have to prove it wasn’t justified defense.

The so-called “stand your ground” laws are legislative modifications of these common law doctrines. They remove, in some cases, the “duty to retreat,” even in public, and extend the “Castle Doctrine” outside of one’s home. Such laws are generally based on the principle that one should not be required to run away, and can fight, even kill if necessary, even in public, if sufficiently threatened. And many of those laws also shift the burden of proof, requiring the State to prove the person wasn’t justified in defending themselves.

Such laws as have been recently discussed are not the law in Ohio, and a greatly different result may have occurred if the Zimmerman case were in Ohio. Two recent cases illustrate this point.

In one case from Butler County, Ohio, an altercation occurred in a night club over someone’s girlfriend and an allegation of cheating. During the fight, one of the persons, I’ll call them L., picked up a barstool and started swinging it as a weapon. The other person, I’ll call them G., found a machete on the floor (allegedly – don’t ask me what kind of night club this is), and picked it up to defend himself from the barstool attack – instead of leaving the scene. Using the machete, G. severed a finger from L. G. was charged with Felonious Assault, a second degree felony, which is assault either with a deadly weapon or that causes serious bodily harm.

At the trial, G. tried to get the Court to instruct the jury that he was entitled to defend himself from the bar stool attack, and use the machete – “deadly force” – to do so. The trial court refused, and G. was found guilty. He appealed, arguing that he was entitled to self-defense and an instruction to the jury.

The Twelfth District disagreed, and affirmed the conviction. Noting the Ohio precedent discussed above, G. wasn’t entitled to a self-defense argument. Although part of the reason for denying that argument was that G. argued that he didn’t even use the machete but just “showed” it as a deterrent (denying he swung it), in which case it is inconsistent at the same time to argue what he did was in self-defense, in addition the evidence was clear that G. also didn’t resort to the deadly force as his only means of escape and avoiding injury, which is the law in Ohio. Specifically by G.’s own testimony he did not go out the unlocked front door that was behind him, instead of fighting, he violated the “duty of retreat” because the use of force was not the only means available to avoid being injured himself. Because G. could have just left, and had other means to diffuse the situation, he had no right to claim, argue, or have the jury instructed, on self-defense. His conviction was affirmed.

The case is State v. Gomez, was decided July 1, 2013. The links may change but the case can currently be found at:

In another recent case, two men got into an altercation on a public street in Cincinnati, over a debt. S., who was owed the money, was sitting in his car and saw C., who allegedly owed the money, across the street. S. got out of his car to confront C. When C. refused to pay, S. started cussing him and threated to “kick his ass.” C. then pulled a gun, told S. he “was going to die,” and shot S. at close range, and shot a couple more times when S. fell to the ground. S. though did survive, although sustaining numerous serious injuries.

C. turned himself into police. He claimed that he knew S. was known to carry a gun, and that he had his hands in his pockets during the confrontation. C. also said that S. was known to have a violent history, a criminal record, and including gun charges. He said he shot S. because he was afraid S. would shoot him first. C. was charged with attempted murder and felonious assault, and was convicted at trial, but waived a jury so it was a judge or “bench” trial.

On appeal he argued he should not have been convicted, among other reasons because he only shot S. in self-defense. The First District Court of Appeals agreed with the trial court, it was not self-defense. First, C. only threatened to “kick his ass,” and according to witnesses never actually raised his hand to S., and in response S. pulled a gun and shot him several times. And C. could also have just run away. Self-defense, in Ohio, does not apply in those circumstances.

The case is State v. Carmen, was decided July 31, 2013. The links may change but the case can currently be found at:

These cases show that the law that was applied in the Zimmerman case would not have applied in Ohio and that in Ohio a much different result may have occurred. To some extent, these cases also give grounds to argue against the laws that applied in Florida, resulting in street violence and maybe unnecessary harm.

One of the most powerful tools the police have to investigate crime, but also that can be the most invasive of a person’s privacy, is the power to search, without a warrant. The Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court, is supposed to limit that power, by prohibiting searches without a warrant, and prohibiting “unreasonable” searches and seizures of evidence.

It is common for police to use dogs to sniff out contraband, particularly drugs, and do so around cars and buildings. In the past, it was unresolved if this constituted a “search” under the Fourth Amendment, and therefore requiring a warrant, or one of the numerous court-created exceptions to the warrant requirement. In the jurisdictions where a dog sniff was not a search, the police could bring in a dog around a parked or stopped vehicle, or even a home, and if the dog “reacted” in the trained way to the presence of contraband, the officers would then search the car, or the home, without a warrant. The theory was that because it was only the free and public air being examined, it was not an invasion of anything private and therefore not really a search — it was no different than looking at something in the public view, just using a nose instead of eyes.

On March 26, 2013, the United States Supreme Court resolved the controversy and found that indeed when a dog was used, in that case on a suspect’s front door, to sniff for drugs, it was a search, and therefore subject to Fourth Amendment protection. The rationale was that the senses of a dog were no different than a planted GPS, or a thermal imaging device, which the Court had previously found also were searches.

The decision is a greater protection of persons and places in their homes from the power, and sometimes misused power, of the police, and is a victory for the advocates for personal rights and liberties over the power of law enforcement.

The link may change but the case is Florida v. Jardines, and can be found at: